Dean v. Ross

• Decision Date: 15 February 1940
• Docket Number: 27885.
• Citation: 7 S.E.2d 411,62 Ga.App. 60
• Parties: DEAN v. ROSS et al.
• Court: Georgia Court of Appeals

7 S.E.2d 411

62 Ga.App. 60

DEAN v. ROSS et al.

No. 27885.

Court of Appeals of Georgia, Division No. 2.

February 15, 1940

Rehearing Denied March 11, 1940.

Syllabus by the Court.

P. S. Twitty and R. M. Daley, both of Dublin, and Walter W. Aycock of Atlanta, for plaintiff in error.

E. L. Stephens, W. H. White, and C. C. Crockett, all of Dublin, for defendants in error.

FELTON, Judge.

1. An alleged statement of facts not being set forth in the bill of exceptions nor made a part of the same as an exhibit thereto and properly authenticated, what purports to be an agreed statement of facts, specified in the bill of exceptions as such and sent up as part of the record, but not approved by the judge and ordered filed, cannot be considered by this court. Continental Life & Health Ins. Co. v. Hand, 24 Ga.App. 476, 101 S.E. 193; Federal Investment Co. v. Ewing, 165 Ga. 435, 141 S.E. 65. The assignments of error necessitating a consideration of the evidence cannot be considered. It was not error to overrule the motion for new trial.

2. The assignment of error upon the exceptions pendente lite is without merit. The exception is to the judgment of the court in refusing to strike the entire answer upon written motion, in the nature of a general demurrer. The answer denied the material allegations of the petition. The plaintiff's contention was that the defendant had rented out lands in his capacity as administrator and had applied all the rents upon claims of equal or inferior dignity to plaintiff's, had paid the plaintiff nothing and therefore had committed a devastavit. The answer alleged that the defendant had rented out said lands every year since he had been administrator and used the money in semi-annual instalments due on a loan made to his intestate which was secured by the land rented; that he had no money of said estate with which to make said payments and that no money belonging to the estate was used in the making of any of the payments. The foregoing allegations and the further allegations in the answer that soon after defendant qualified as administrator he exposed the lands for sale without avail and again in December 1937 cannot be said to demand the conclusion as a matter of law that the defendant rented the land in his capacity as administrator. It was not error to overrule the motion to strike the entire answer.

Judgment affirmed.

STEPHENS, P. J., and SUTTON, J., concur.